Who is derailing democracy in Pakistan?

The judiciary is blocking progress in Pakistan. About a decade ago Pakistan Bar Association published a White Paper to show how the higher judiciary in Pakistan had harmed democracy by siding with the Army in its usurpation of political power. We have seen how the Lahore High Court and the Supreme Court of Pakistan nixed the murder trial of deposed Prime Minister Zulfikar Ali Bhutto in the 1970s, humiliated him and sentenced him to death allegedly at the behest of the Army Chief Gen Ziaul Haq…writes Dr Sakariya Kareem

Less than three weeks after Pakistani terrorists carried out a bloody attack in Mumbai in November 2008, the United Nations Security Council (UNSC) designated Jamaat-ud-Dawa (JuD)’s top leaders including Hafiz Saeed as terrorists and forced the government of Pakistan to take action against them. Then prime minister Yusuf Raza Geelani said his government would fulfil its international obligations. He was even willing to send, then ISI Chief Lt. Gen Shuja Pasha to India as suggested by then India’s prime minister Manmohan Singh. But faced with opposition, he changed his decision.

Geelani took some time to realise that his government or for that matter any civilian dispensation in Pakistan, cannot punish anti-India terrorists with cross-border targets. He must have got the first hint to this truth when a justice of the Lahore High Court reacted to the UNSC resolution by saying let the Security Council first implement its resolutions on Jammu and Kashmir. This populous remark made it very clear that Pakistani courts will not allow the implementation of the UNSC’s resolution on Hafiz Saeed and company. Hafiz Saeed did not accept the UNSC’s resolution. If India had any proof against him, let it go to courts, he said the day the UNSC passed the resolution on December 10, 2008. That showed his faith in Pakistani courts.

Pakistan’s new army chief General Qamar Javed Bajwa (L) receives the change of command baton from the outgoing Chief of the Army Staff (COAS) General Raheel Sharif (R) during the change of command ceremony in Rawalpindi, Pakistan (Xinhua/ISPR) ****Authorized by ytfs****

The then Civilian government, led by the Pakistan People’s Party (PPP), was committed to have good relations with India. Initially it wanted to convince the UNSC and India of its sincerity to punish the perpetrators of the Mumbai carnage. Following the UNSC resolutions, Interior Minister Rahman Malik announced at a press conference in Islamabad on January 15, 2009, that the government had arrested 124 persons connected with this carnage. The arrested included Hafiz Saeed, Hamza and Maulana Zakiur Rahman Lakhvi. Saeed was put under house arrest for 30 days on December 13, 2009. JuD’s 20 offices, 87 schools, 7 madrashas, 2 libraries and 5 camps in Punjab and Pakistan-occupied Kashmir (PoK) were sealed. The government banned the publication of JuD journals including Al Dawat, Zarb-i-Tiba, Voice of Islam, Nanneh Mujahidin and Rabita (in Arabic). Six websites of JuD or connected with it were blocked. Newsmen told the Minister that those restrictions indicated that the government had got solid proofs against Hafiz Saeed and the JuD, Malik replied Pakistan had done all these as a member of the United Nations.

But no solid proofs against the JuD and its Chief Hafiz Saeed make sense to the courts. Pakistani courts are not supposed to see any evil or hear any evil about the JuD, Hafiz Saeed or any organisation or individuals who are said to enjoy Army’s protection. This may sound a very harsh comment on Pakistan’s courts. But there is Army-Court history which does not embolden one to challenge it. About a decade ago Pakistan Bar Association published a White Paper to show how the higher judiciary in Pakistan had harmed democracy by siding with the Army in its usurpation of political power. We have seen how the Lahore High Court and the Supreme Court of Pakistan nixed the murder trial of deposed Prime Minister Zulfikar Ali Bhutto in the 1970s, humiliated him and sentenced him to death allegedly at the behest of the Army Chief Gen Ziaul Haq. Supreme Court Chief Justice Anwar Haq, it was said, was aspiring to be made the Vice President of the country or be nominated as his country’s candidate for the post of a World Court’s judge.

Former Pakistani President Asif Ali Zardari (Xinhua/Saadia Seher)

Till now courts have been used to justify military coups and all actions of the incumbent military dictators. Even now there seems to be a little change. The new play is: the Army stays invisible back stage while courts subvert democracy to make a way for convincing ultimate military takeover. This is the picture one gets from the grounds of Prime Minister Nawaz Sharif’s disqualification in July last year and looking over somewhat similar charges against Pakistan Tehreek-e-Insaf (PTI) Chief Imran Khan, an alleged protégé of the Army. Secondly, while the largest mainstream party, the PML(N) led by Nawaz Sharif is being pushed to disintegration. On the other hand, there is a noticeable effort to mainstream militant Islamist groups, who do not believe in either democracy or the Constitution of Pakistan, thus confounding the political crisis created by the disqualification of Nawaz Sharif.

During his house arrest from January 31 to November 24, 2017, Hafiz Saeed launched the Milli Muslim League (MML) in August to serve as a political front of the JuD. The party’s leadership is made up of Lashkar-e-Toiba (LeT) activists, who have already been under the UNSC watch list. He declared the MML would fight the coming elections under the JuD banner. The JuD got a boost in September last year when an MML candidate fought the National Assembly (NA-120) by-elections in Lahore as an independent candidate and get the fourth position in the matter of votes received leaving far behind the Jamaat-e-Islami (JI).

The MML candidate fought as an independent candidate because of the Pakistan’s Interior Ministry’s directive to the Election Commission of Pakistan (ECP), which would not register an organisation as a political party which had links with militant groups. In October the ECP made it very clear to the MML that it could not be registered for this reason. But in March this year, the Islamabad High Court turned down the ECP’s decision and ordered it to ignore the law of the land and the constitution while rejecting ECP’s refusal to register the MML. The court also ignored the country’s international obligations regarding Hafiz Saeed, the JuD and its affiliates and the embarrassment the country had to face at the Paris meeting of the Financial Action Task Force (FATF) in February.

The Lahore High Court also ignored this embarrassment and more than that the President’s Ordinance of February 12 this year. The ordinance came about two weeks ahead of the FATF meeting to ban individuals and organisations proscribed by the UNSC. In pursuance of this ordinance the government took control of JuD’s schools, madrashas, clinics and vehicles. The Lahore High Court in Saeed’s petition ordered the government not to harass Hafiz Saeed and allow him to continue his social welfare activities till the next hearing on April 23.

The Islamabad high Court’s rejection of ECP’s refusal to register the MML as a political party has been trivialised by the United States listing the party and another outfit Tehreek-e-Azadi Jammu and Kashmir (TAJK) among terrorist organisations. One Pakistani newspaper has said in an editorial that Hafiz Saeed was put under house but no investigation so far was done. The answer is that no government of the day in Pakistan dares approach courts knowing their bias for those terrorists who are dear to the Army. The courts will reject all evidence against the terrorists as insufficient.

But things in future may not be the same, as a Pakistani economic analyst Kamal Monnoo warns in a candid piece, ‘Pakistan takes FATF seriously’ (The Nation, April11) of the consequences. He advises amongst others: ‘…..Care must be taken that institutional shenanigan at home should be avoided: Courts should avoid passing judgments, which at this stage could hurt Pakistan’s chances at the FATF – romantic notions like independence of the judiciary, sovereignty, etc. can wait for later – and the government should refrain from passing any bills or ordinances (at this rather late stage of their tenure) that do not find positive traction with the FATF.’ As we also hear that Pakistan might permanently ban terrorist organisations like JuD, but as the current political situation in serious doldrums and the higher judiciary especially the Chief Justice of Pakistan (CJP) seems to have his own agenda, it remains to observe how long these terrorists can subvert international pressure on Pakistani establishment by taking legal recourse.

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